DC Marijuana Decriminalization: Know the Facts

Marijuana decriminalization took effect a few weeks ago and its important to know the facts before you spark up. First and foremost, marijuana remains illegal under federal law. There is a good chance that at least the United States Park Police and the Capitol Police—both of which have jurisdiction to make arrests in DC—will continue to make arrests for marijuana possession. Whether the United States Attorney’s Office will then prosecute those arrests in federal district court remains to be seen.

Under District of Columbia law, possession of an ounce or less of marijuana is now punishable by a $25.00 citation. The citation is akin to a speeding ticket. It does not carry possible jail time. That means if the Metropolitan Police Department (or “MPD”)—the District’s local police force—stops you and finds less than one ounce of weed, the officer should only give you a citation and let you on your way. However, smoking marijuana in public remains illegal under both federal and local law. That means if you get caught by any police agency smoking weed in public, you will likely get arrested. The penalty for smoking weed in public is akin to getting arrested for possessing an open container of alcohol.

The offense of smoking marijuana in public carries a maximum penalty of 60 days in jail and/or a $500 fine. The Office of the Attorney General will prosecute this new crime. It also remains to be seen how aggressively that office will prosecute that crime. It is possible they could offer diversion for first offenders. It will also be interesting to see how DC Superior Court judges typically sentence people for this crime. The best way to avoid criminal prosecution is to refrain from smoking anywhere in public, which includes in a vehicle, on streets, sidewalks, parks, alleys, parking areas, and any publicly accessible private property (like a store or restaurant).

Selling marijuana remains illegal and will likely be prosecuted aggressively. In my view, this provision is one of the major flaws in the new law. The City Council has now likely increased demand for a substance that remains illegal to sell. That is one of the reasons Scrofano Law supports full scale legalization (like Colorado and Washington). However, this law is a step in the right direction.

Finally, MPD officers can no longer use the smell of marijuana as reasonable suspicion to search someone or a vehicle. There is an exception to this provision, however, where police suspect someone is driving under the influence of marijuana, which remains criminalized. I expect to see an increase in arrests for driving under the influence of marijuana. These types of arrests are particularly problematic where a defendant takes a urine test. Marijuana may show up in an individual’s urine days or even weeks after the person no longer feels the intoxicating effects of the drug.

If you find yourself arrested for smoking marijuana in public, distributing marijuana, or driving under the influence of marijuana (all which remain criminalized), you should immediately contact a qualified DC marijuana defense lawyer. Contact Scrofano Law today for a consultation.